Malik v Central Criminal Court & Anor

A bail application directly affecting personal liberty should ordinarily be heard in public. The court must begin with the fundamental presumption of open justice and decide, by judgment rather than unfettered discretion, whether the interests of justice justify excluding the public. Criminal Procedure Rules 2005, r 16.11, permits a judge to sit in chambers but creates no presumption that bail applications are private. A private hearing may be justified by risks including prejudice to the trial, disclosure of confidential information or unacceptable delay. A defendant in custody has no automatic right to attend a bail hearing under r 19.18(5); attendance remains subject to the Crown Court’s leave.

The claimant, charged under section 58(1)(b) of the Terrorism Act 2000, challenged the Common Serjeant’s refusal to hear his Crown Court bail application in public and his refusal to direct that he be produced. The refusal of bail itself was not challenged. The court also considered whether the decision was susceptible to judicial review and whether the statutory exclusion of matters relating to trial on indictment applied.

The central issues were whether a Crown Court bail application should presumptively be public and whether an accused person in custody was entitled to attend it.

1. Jurisdiction. The decision was collateral to the indictment and therefore was not excluded from judicial review by section 29(3) of the Supreme Court Act 1981. The abolition of the former alternative remedy of applying to a High Court judge for bail removed the jurisdictional obstacle identified in R v Croydon Crown Court, ex parte Cox [1997] 1 Cr App R 20. The court could review the legality of the procedure, though not the merits of the refusal of bail.
2. Open justice. The common-law principle is that court hearings take place in public unless privacy is strictly necessary for justice. That principle applies with particular force to a hearing directly affecting personal liberty. The issue is one of judicial judgment as to whether departure from open justice is justified, rather than an unrestricted discretion to choose between equally proper courses. Scott v Scott [1913] AC 417 was applied.
3. Rule 16.11 of the Criminal Procedure Rules 2005 is permissive. It allows a Crown Court judge to sit in chambers but does not create a presumption that bail applications must be heard privately. Chambers is not synonymous with private. A public hearing may be excluded where justice requires it, including to avoid prejudice to the prosecution or defence, disclosure of confidential information, or delay defeating the purpose of the application.
4. Applications may be listed on the provisional assumption that a closed hearing will be required, but any request for a public hearing must be approached on the basis that it should ordinarily be granted unless there is a sound reason for exclusion. Any conflict must be resolved judicially by reference to the interests of justice.
5. Presence of the defendant. Rule 19.18(5) makes clear that a defendant in custody has no automatic right to attend a bail hearing. The Crown Court may grant leave, having regard to fairness and practical considerations including expense, distance and the availability of video links.
6. The Common Serjeant failed to begin from the fundamental presumption in favour of open justice. His refusal to hear the application in public was quashed. The bail application was to be re-determined by a judge of the Central Criminal Court as soon as practicable, including whether to sit in public and whether to grant bail.

Permission was initially refused on the papers on 11 April 2006. The Full Court granted permission on 5 May 2006. The Divisional Court allowed the judicial review to the extent stated and quashed the refusal to hear the bail application in public.